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Obama to waive Sanctions? Tweet Your State Governor to Sue the President in Federal Court!

According to reports out of Tehran, President Obama is poised to wave sanctions next week. This despite Congressonal outrage over Iran’s violation of bans against missile testing .  Note this comment in a Washington Free Beacon report:

“The ink isn’t even dry on President Obama’s nuclear agreement and Iran is already breaking rules,” Sen. David Perdue (R., Ga.) said on Thursday. “This should not come as a surprise to anyone since Iran has cheated on every deal.”

Iran’s missile test and disclosure of underground  sites  occurred just before  yesterday’s initiation date of October 15, 2015 for the JCPOA Iran nuclear deal. Incredulously, White House spokesperson Josh Earnest said that Iran’s  missile test have nothing to do the nuclear pact. Really?  The only reason for testing precision guide missile is to launch nuclear weapons. Watch this Reuters  video of Earnest’s White House Daily Press Briefing on JCPOA ‘initiation day:”

Now, it is your turn to do something: Tweet your state Governor to sue  Obama  in Federal court for unlawful conduct.  That is what the members of the Dallas Task Force of the Lisa Benson Radio Show National Security Task Force of America (NSTFA) are doing.

Congress is on vacation and lost the opportunity to sue the President when minority Democrat Senators spiked a Republican majority sponsored resolution last month rejecting the Iran deal. Further, while the Senate has standing to sue the President in Federal court over his mishandling of the Iran nuclear pact and review by Congress, it  is unable to pass a resolution authorizing that suit as it lacks a super majority.  Noted Washington, DC Constitutional litigator, David B. Rivkin, Jr. of the Baker Hostetler Law firm, who has brought successful Federal Court suits on separation of powers grounds over the Affordable Care Act, thinks that the 30 states that passed Iran sanctions laws under Federal Law would have standing to bring a similar cause of action.

So the  Dallas members of the (NSTFA)  are sending  tweets containing  messages urging Texas  Governor Abbott , Attorney General Paxton  and Texas state legislators to  join with  Republican gubernatorial colleagues  in 14 other States to file a suit in Federal court. That might possibly  stop the clock on implementation of the Iran nuclear deal by December 15, 2015 preventing release of  upwards of $100 billion in sequestered funds . That assumes Iran gets a rubber stamp of approval from the UN nuclear Watchdog agency, the IAEA about its prior military developments. Iran suggests it only has peaceful nuclear energy applications or intentions despite enrichment of uranium and building plutonium producing heavy water reactor . They have only one purpose; providing fissile material for an arsenal of nuclear weapons.    Iran is counting on release of those funds to support global terrorism including aiming ICBMs at the US and allies in Europe and the Middle East, like Israel.  Iran already has a running start on that. The 2013 interim Joint Plan of Action released $12.9 billion in sequestered funds.  Further, Swiss Banking authorities released $60 billion in hard currency reserves of Iran that were held by member banks.  That was just a few days after the UN Security Council, including the US, unanimously endorsed, the  Joint Comprehensive  Plan of Action (JCPOA) .

Now there is further cause for action by American citizens.  Just this week Iran disclosed it violated a UN Security Council resolution  barring testing of  ballistic missile technology by launching a precision guided Missile , the Emad, or  pillar in Farsi,  with a range of 1,700 kilometers. That would have sufficient range to hit Israel, Saudi Arabia, the Emirates, Egypt and NATO members in Europe.  That same guided missile would be capable of lofting a nuclear bomb in a satellite into a polar orbit.  If detonated over the US  that could trigger a devastating Electronic Magnetic Pulse (EMP) effect shutting down our digital economy and power grid possibly resulting in millions of casualties.  If that wasn’t enough, we had a senior Revolutionary Guards officer threaten to attack US interests in the Gulf of Mexico.  Moreover, despite approval of the Iran nuclear deal by what passes for its parliament, the Majlis,  the  Iranian  Council of Guardians ratified  the amended law that it didn’t violate Islamic Sharia law. Ayatollah Khamenei  forbid  further negotiations with the US with calls from his hard liners chanting “Death to America”.  Iran is already in an alliance with Russia, Syria and Iraq sending funds, weapons and more than 7,000 Revolutionary Guard  to prop up the Assad Regime in Damascus, isolating America’s allies in the Middle East.

Texas has standing before Federal courts to bring a suit against the President. Texas and 29 other states  enacted state Iran sanctions laws, authorized under a 2010 Federal Comprehensive Iran Sanctions law.   Moreover, the executive order that the President  signed today recognizing the UN recommended JCPOA may be in violation of the failed Corker –Cardin Iran Nuclear Agreement Review Act of 2015. Further  there  a 2012 federal law closing the loophole licensing foreign subsidiaries of US parent corporations barring them from doing business in Iran.

15 States, including Texas, signed a letter authored by Florida Governor Rick Scott objecting to the President’s mishandling of the Iran nuclear act negotiations that drew attention to state sanctions statutes.

As noted in the Miami Herald “Naked Politics” blog, “the [September 8th] letter focused concerns about how it would affect pension divestment policies and contracting restrictions.” The governors’ letter supported the position articulated by Washington, DC constitutional litigator David Rivkin, Esq.:

Paragraph 25 of the Iran nuclear agreement provides that the federal government will “actively encourage” states to lift state-level sanctions such as the divestment and contracting restriction laws,” the letter states. “While Secretary Kerry confirmed in testimony before the House Foreign Affairs Committee that the agreement will not preempt state law because it is not a treaty, we are concerned about what steps your Administration may take to attempt to implement paragraph 25. Therefore, we wish to make it clear to you in advance of any efforts to implement paragraph 25 that we intend to ensure that the various state-level sanctions that are now in effect remain in effect. These state-level sanctions are critically important and must be maintained.’

The letter was signed by Govs. Scott, Doug Ducey of Arizona, Asa Hutchinson of Arkansas, Mike Pence of Indiana, Bobby Jindal of Louisiana, Phil Bryant of Mississippi, Chris Christie of New Jersey, Jack Dalrymple of North Dakota, John Kasich of Ohio, Mary Fallin of Oklahoma, Nikki Haley of South Carolina, Dennis Daugaard of South Dakota, Greg Abbott of Texas, Gary Herbert of Utah, and Scott Walker of Wisconsin.

In our NER article on the question of states having the authority to bring possible federal litigation over sanctions relief, we noted this comment from an August 2015 Steptoe International Compliance blog post on “The  JCPOA and State Sanctions:”

The Iran nuclear deal (JCPOA) does not say much about Iran sanctions imposed by US state governments. … These state restrictions can be more extensive in scope than US federal sanctions. For example, some state restrictions (e.g. in Florida) attach automatically to the parent entity of the company who engages in certain Iran activities. Laws in many states provide for the lifting of Iran sanctions when the President removes Iran from the list of countries that support terrorism; but the JCPOA does not do that, and, as a result, Iran sanction laws in most states will remain intact

Below are  what the Dallas NSTFA  will be tweeting  Texas Governor Abbott, Attorney General Paxton, every state legislator, the Texas Congressional  delegations in both the US Senate and House, as well major media in the Lone Star State.  You can do the same along with like minded citizens in the 13 remaining states. A number of us will be doing that here in Florida. All you have to do is change the name of your respective state, state officials and Google their Tweet addresses on-line. Then  get your  teams to retweet them.  Can we count on you to do the same in the remaining states of Arizona, Arkansas, Indiana, Louisiana, Mississippi, New Jersey, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah and Wisconsin?

StateSealofTexasSealSuggested Tweets for Texas National Security Task Force President Obama Signing Executive Order For Iran Nuclear Deal:

#Texas Sue Obama over Iran Deal: Gov. Abbott Sue  in Federal Court Now!
# Texas Sue Obama over Iran Deal: Iran Violated Deal before Obama Signed
#Texas Sue Obama over Iran Deal:  Texas Iran Sanctions Law Gives Standing to Sue
#Texas Sue Obama over Iran Deal:  Stop Iran Missiles aimed at US Now!
# Texas Sue Obama over Iran Deal:  Demand Iran Release 4 Americans Now!
#Texas Sue Obama over Iran Deal:  Iran  Already Received  $72 Billion  back!
#Texas Sue Obama Over Iran Deal:  Pay US Victims of Iran Terror First!
#Texas Sue Obama Over Iran Deal:   Congress Didn’t Sue but Texas Can!
#Texas Sue Obama Over Iran Deal:  Gov. Abbott Join 14 States Who Objected to Iran Deal in Federal Court
#Texas Sue Obama Over Iran Deal:  AG Paxton file Federal Court brief now!
#Texas Sue Obama Over Iran Deal:  Stop Iran Nuke EMP attack!
# Texas Sue Obama Over Iran Deal: Keep Iran Out of the Gulf of Mexico!
#Texas Sue Obama Over Iran Deal: You can Stop Iran Nukes  Now!
#Texas Sue Obama Over Iran Deal: Texas  Legislature Pass Resolution to  file Suit  Now!
#Texas Sue Obama over Iran Deal: Pres. violated Iran Laws He Signed !
#Texas Sue Obama Over Iran Deal: Make the Lone Star State  First to File  in Federal Court

Consult these New English Review articles and Iconoclast blog posts for further background information:

Obama Poised to Sign Iran Deal: Time for the States to Bring ...

Can the States Stop Implementation of Iran Nuclear Deal …

Could The JCPOA be in Violation of a 2012 Iran Sanctions …

Can States Prevent Release of Iran Sanctions through Federal Litigation?

EDITORS NOTE: This column originally appeared in the New English Review.

Can the States Stop Implementation of Iran Nuclear Deal?

On the Sunday, September 20, 2015 Lisa Benson Show we interviewed, David B. Rivkin, Jr. a noted Constitutional  litigator, a partner in the Washington, DC office of the Baker Hostetler law firm. The topic was “Can the Senate Sue the President over his handling of the Iran Nuclear Deal?”  Rivkin is also   a Senior Fellow of the Foundation for Defense of Democracies (FDD).  He served in a variety of legal and policy positions in the Reagan and George H. W. Bush  Administrations, including stints at the White House Counsel’s office, Office of the Vice President and the Departments of Justice and Energy. While in the government, he handled a variety of national security and domestic issues, including environmental and energy policy, tax, trade and constitutional issues.  He is a much sought after as a media commentator on matters of constitutional and international law, as well as foreign and defense policy.

Rivkin recently won a landmark decision in the D.C. Federal District Court in the matter of House v. Burwell over the supremacy of Congressional appropriations authorities with regard to implementation of the Affordable Care Act that affirmed Congressional standing to bring such an action. He co-authored a September 6, 2015 Washington Post opinion article with Rep. Mike Pompeo (R-KS) suggesting a possible suit by the Senate against the President for non–compliance with the language of the Iran Nuclear Agreement Review Act requiring delivery of all requisite documents including the privileged IAEA side agreements.  A September 10, 2015 WSJ op ed by Rivkin and Elizabeth Price Foley discussed how the successful House v. Burwell suit gave standing to Congress to bring possible litigation against the President. Moreover, the suit in the ACA matter had survived a motion to dismiss by the Administration. We have published similar proposals by Sklaroff and Bender for Senate litigation over the JCPOA unanimously endorsed by the UN Security Council on July 22, 2015.

The Sklaroff Bender proposal required the Senate to change Rule 22 to achieve cloture to cut off filibusters by Minority Democrats, before Majority leader Mitch McConnell (R-KY) might offer up a resolution to treating the Iran nuclear agreement as a treaty under Article II, Section 2 of the Constitution requiring a two thirds vote under the advise and consent of the Senate.  However, to initiate that would have required McConnell to make changes in Rule 22 at the start of the 114th Congress in January 2015.  Currently, to cut off debate requires 60 votes. Congressional Research Service reports on this issue indicated previous proposals reducing the threshold down in steps to a simple majority vote. A number of prominent conservative activists and organizations advocated such a change at the start of the new Congress but McConnell pushed back, arguing that Democrats would use the new rules once they returned to the Majority to quash Republican concerns in the future.

The Senate Republican majority failed in a last move to upend the Iran Nuclear deal. As reported by the AP, a Senate vote on a resolution requiring Iran to recognize Israel as a quid pro quo to lifting sanctions failed once again to reach the 60 vote’s threshold.  The vote was 53 to 45 before the deadline of September 17th under the Corker-Cardin Iran Nuclear Agreement Review Act.  Senate Majority Leader Mitch McConnell (R-KY) said, in an AP report on the Administration’s start to implement the JCPOA, the deal “likely will be revisited by the next commander-in-chief.”  The AP reportedHouse Speaker John Boehner suggesting that possible litigation might be an option. Other Senators and Members of Congress have suggested renewal of the Iran Sanctions Act of 2006 before it sunsets in 2016.

Watch this mid-April 2015  Wall Street Journal interview with David B. Rivkin, Esq. He had presciently predicted the problems confronting  Congress  under the Corker-Cardin Iran Nuclear Agreement Review Act to pass resolutions rejecting the JCPOA.

During the Lisa Benson Show interview, Rivkin suggested that the President had violated Coker-Cardin by not delivering all of the requisite information, including the IAEA side agreements with Iran. As a result of this violation, the Congressional review period has never started and, consistent with the statutory language of Corker Cardin, the President’s authority to lift any sanctions against Iran or unblock any frozen Iranian funds has been vitiated. Rivkin expressed the view that, if the President were to indicate that he intends to lift sanctions, or unblock frozen assets, this decision can be challenged in court, either by the House or the Senate, or the States. Listen to the Rivkin interview on the Lisa Benson Show sound cloud, here.

Rivkin and colleague Lee Casey wrote about that possibility in a July 26, 2015, Wall Street Journal opinion article, “The Lawless Underpinnings in the Iran Nuclear Deal“. They argued:

The Obama end-run around the Constitution could yet be blocked if states exercise their own sanctions regimes …The administration faces another serious problem because the deal requires the removal of state and local Iran-related sanctions. That would have been all right if Mr. Obama had pursued a treaty with Iran, which would have bound the states, but his executive-agreement approach cannot pre-empt the authority of the states.

That leaves the states free to impose their own Iran-related sanctions, as they have done in the past against South Africa and Burma. The Constitution’s Commerce Clause prevents states from imposing sanctions as broadly as Congress can. Yet states can establish sanctions regimes—like banning state-controlled pension funds from investing in companies doing business with Iran—powerful enough to set off a legal clash over American domestic law and the country’s international obligations. The fallout could prompt the deal to unravel.

An explanation of the JCPOA State Sanctions impasse was outlined in a Steptoe International Compliance blog on August 15, 2015, “The JCPOA and State Sanctions” by Bibek Pandy:

The Iran nuclear deal (JCPOA) does not say much about Iran sanctions imposed by US state governments. Almost two dozen states (including New York, California and Florida) have passed laws that in some form (i) ban the awarding of government contracts to companies tied to Iran, and/or (ii) prohibit public funds from investing in companies doing certain types of business in Iran. These state restrictions can be more extensive in scope than US federal sanctions. For example, some state restrictions (e.g. in Florida) attach automatically to the parent entity of the company who engages in certain Iran activities. Laws in many states provide for the lifting of Iran sanctions when the President removes Iran from the list of countries that support terrorism; but the JCPOA does not do that, and, as a result, Iran sanction laws in most states will remain intact.

[…]

Companies considering engaging in activity authorized under the JCPOA need to be still mindful of non-federal Iran sanctions. In particular, state government contractors with Iran links should review state procurement laws before engaging in activities permitted by the JCPOA. Furthermore, contractors can face civil penalties in many states for providing false certifications related to their Iran activities. The bar for Iran-related disqualification in some states is relatively low, and the JCPOA does not change that.

David B RivkinDavid B. Rivkin, Jr., Esq.

Following the Lisa Benson Show, David Rivkin and this writer held a conversation to explore the possibilities of a state level initiative. Florida Attorney General (AG) Pam Bondi led a filing made in the 1st Federal District Court in Pensacola on behalf of Florida and more than two dozen other State AGs endeavoring to overturn the Affordable Care Act. Federal Judge Vincent heard oral arguments and ruled on the matter sending it ultimately to the 11th Circuit in Atlanta.   Rivkin thinks that a similar action could be mounted by Florida and a few other states in the same legal venue, the 1st District Court.  The filing might be based on existing Florida sanction law passed under the federal 2010 Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) supplemented by an Executive Order.

The State cause of action, according to Rivkin, could be filed in a matter of weeks, potentially forestalling the release of sanctions before the implementation date under JCPOA, December 15, 2015. As indicated in a September 11, 2015 FDD memo by Dubowitz, Fixler, et.al. the subsequent release of upwards of $120 billion of sequestered funds in several Asian banks would take an additional six months. Thus the Rivkin state litigation proposal, if implemented promptly, might possibly stop the release of Iran nuclear sanctions.

EDITORS NOTE: This column originally appeared in the New English Review.